Citation Nr: 18152751 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 14-31 815 DATE: November 27, 2018 ORDER Service connection for a left ankle disability is denied. Service connection for a bilateral hearing loss disability is denied. Service connection for tinnitus is denied. REMANDED Service connection for a left knee disability is remanded. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Appellant has a left ankle disability. 2. The weight of the evidence is against a finding that the Appellant’s bilateral hearing loss disability or tinnitus began during, was continuous since service or was otherwise caused by military service. CONCLUSION OF LAW The criteria for service connection for a left ankle disability, a bilateral hearing loss disability, and tinnitus have not been met. 38 U.S.C. §§ 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision. The Board remanded the Appellant’s claim in March 2018, and the Board finds that its remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that when the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). VA provided the Appellant with adequate notice in March 2010. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2018); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev’d on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). While the Appellant underwent an adequate examination in June 2010 addressing the nature and etiology of his bilateral hearing loss disability and tinnitus, the Appellant has not been afforded VA examinations addressing his claimed left ankle disability. No such examination is required, because there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). The medical evidence does not show that the Appellant has been diagnosed with a left ankle disability at any time. Instead, the only suggestions that the Appellant may have such a disability are the Appellant’s own statements. These facts are insufficient to trigger VA’s duty to provide an examination with an opinion. Without competent evidence indicating that the Appellant has indeed been diagnosed with a left ankle disability, a VA examination addressing this claim is unwarranted. See Waters, 601 F.3d 1274. The Appellant participated in a hearing before the undersigned, and a transcript of this hearing has been associated with the record. Thus, the Board finds that VA has complied with its duties to notify and assist. Service Connection Generally In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). In order to establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a nexus between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). “Active military service” in the United States Coast Guard Reserve (Reserve) generally means active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). ACDUTRA is full-time duty for training purposes performed by Reservists pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6 (d). Service connection may be granted for disabilities resulting from a disease or injury incurred in or aggravated while performing ACDUTRA; service connection is only warranted for injuries incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101(22)-(24), 106(d), 1110, 1141; 38 C.F.R. §§ 3.6(c), (d), 3.303. Service Connection for a Left Ankle Disability In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement for service connection that a current disability be present is, however, satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007) (a service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Turning to the facts in this case, the Appellant filed his claim for chronic left ankle sprains and arthritis in March 2010. Since that time, the Appellant has not submitted any medical evidence showing treatment for, or diagnosis with, a left ankle disability. During the Appellant’s March 2017 hearing before the undersigned, the Appellant broadly stated that he “had more problems when [he] was younger with his ankle”. Turning to an analysis of these facts, the weight of the medical evidence is against a finding that the Appellant has a left ankle disability. To the extent that the Appellant indeed believes that he has such a disability, the Appellant is competent to testify as to readily observable symptoms. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Appellant, as a layperson, is not competent to report that any symptoms that he experiences rise to the level of a “disability” for VA purposes. Thus, while the Appellant may experience certain symptoms, his statements are not sufficient to establish the presence of the claimed disability, particularly when he has not otherwise sought treatment for such symptoms. The Board, therefore, finds that the weight of the evidence does not establish the presence of a left ankle disability. Accordingly, the Board concludes that the criteria for service connection for a left ankle disability have not been met, and the claim is denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Appellant when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Appellant’s claim. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The benefit sought on appeal is accordingly denied. Service Connection for a Bilateral Hearing Loss Disability and Tinnitus The Appellant enlisted into duty with the Reserve in April 1966 for a six-year period of obligation. The Appellant had an initial period of ACDUTRA from April 18, 1966, to October 17, 1966, during which time he participated in individual combat training from August 3, 1966, to August 26, 1966. In September 1966, the Appellant denied experiencing symptoms such as ear trouble. The Appellant’s September 1966 separation examination showed that his hearing, as measured by whispered voice testing, was normal. The Appellant had additional periods of ACDUTRA from July 30, 1967, to August 11, 1967, from June 30, 1968, to July 12, 1968 (after which time the Appellant indicated he was in the approximately the same physical condition as he was before that period of ACDUTRA), from April 20, 1969, to May 2, 1969, from June 21, 1970, to July 2, 1970, and from May 16, 1971, to May 28, 1971. The Appellant additionally had periods of INACDUTRA service. The Appellant was honorably discharged from the Reserve in April 1972 at the termination of his six-year contract. Following service, the Appellant filed his claims for service connection in March 2010, at which time he argued that he developed a bilateral hearing loss disability after his exposure to extreme noise while undergoing combat training without hearing protection. The Appellant underwent a VA audiological examination in June 2010, at which time the Appellant denied ever having experienced tinnitus. The Appellant described his in-service noise exposure, including participating in weapons fire without hearing protection. The Appellant indicated that after separating from the military, he worked in the car business for 35 years, in sales for 5 years, and in the pharmaceutical industry for 5 years. The Appellant indicated that he participated in hunting or recreational shooting without the use of hearing protection. After diagnosing the Appellant with a bilateral hearing loss disability, the examiner opined that the disability was less likely than not related to the Appellant’s in-service noise exposure. As a rationale for this opinion, the examiner noted that the Appellant’s period of combat training lasted for 23 days. The examiner noted that medical examinations from before and after the Appellant’s 1966 period of ACDUTRA service showed normal hearing levels. With such a limited number of days of noise exposure occurring over 40 years ago, the examiner opined that the Appellant’s hearing loss was less likely than not due to his in-service noise exposure. In March 2017, the Appellant testified that he indeed had periodic ringing in the ears that he first noted in the “middle to late 1970s”. He also testified that friends told him he had problems hearing about 3 to 5 years after service. He did not indicate that he had hearing problems in service. Upon review of these facts, with the Appellant alleging a current disability and an in service incident, the remaining question is whether the evidence supports a finding of a connection between the Appellant’s bilateral hearing loss disability, his tinnitus, and his in service experiences. The Board finds that the weight of the medical evidence of record, and particularly the opinion of the June 2010 examiner, is against a finding that the Appellant’s bilateral hearing loss disability and tinnitus is related to his service. The Board places great weight on the opinion of the June 2010 examiner because such opinion was offered following a full review of both the medical evidence and the Appellant’s own contentions. To the extent that the Appellant believes that his bilateral hearing loss disability and tinnitus are related to his service, the Board notes that the Appellant is competent to provide testimony concerning factual matters of which he has first hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA provided the Appellant with an examination based in part on the competency of those observations. Lay persons are also competent to provide opinions on some medical issues, such as when the Appellant began experiencing symptoms such as hearing loss or ringing in the ears. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the issue of causation of such disabilities are medical determinations outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Appellant’s bilateral hearing loss disability and tinnitus are related to his service, the Board ultimately affords the objective medical evidence of record, which weighs against finding such a connection, with greater probative weight than the lay opinions, as such evidence was provided by a medical professional and concerned the Appellant’s neurological system, the internal functioning of which is not readily perceivable by the use of a person’s senses. Furthermore, the evidence in this case does not present a continuity of symptomatology. The Appellant did not complain of symptoms relating to his hearing at the time of his separation from service, which weighs against a finding that the Appellant experienced symptoms continuously since service. The first post-service complaint relating to the Appellant’s hearing occurred at the time he filed his 2010 claim for benefits, over 40 years after he separated from Reserve service. The Veteran testified that hearing problems were mentioned to him by friends 3 to 5 years after service and that tinnitus started in the middle to late 1970’s. Thus, the Board finds that the record does not show a continuity of symptomatology since the Appellant’s separation from service. This factor too weighs against the Appellant’s claim. The Board thus finds that the weight of the evidence is against finding a connection between the Appellant’s military service and his bilateral hearing loss and tinnitus. The Board concludes that the weight of the evidence is against granting service connection, and the claims are denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Appellant has claimed that he experienced an in-service fall that injured his left knee. Since filing his claim for service connection, the Appellant has been diagnosed with osteoarthritis of the left knee. The Appellant has not yet been afforded with a VA examination addressing the nature and etiology of his left knee disability. With a currently-diagnosed left knee disability and an allegation of an in-service injury, the Appellant should be provided a VA examination. The matters are REMANDED for the following action: 1. Schedule the Appellant for a VA examination to determine the nature and etiology of his left knee disability. After reviewing the Appellant’s electronic claims file and describing the nature of the Appellant’s disability, the examiner should address whether it is at least as likely as not (that is, a 50 percent probability or greater) that the Appellant’s left knee disability began during or was otherwise caused by his military service. A complete rationale should be provided. K.J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Flynn